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Obamacare Premise Is Just Wrong

Next week, the Supreme Court takes up the Obamacare litigation,
the heart of which is the issue of whether the federal government
can constitutionally force people to buy health insurance.

No longer is anyone calling this case “frivolous” or “easy,” as
most commentators once did. After all, when the Supreme Court
grants six hours of oral argument over three days — something
not seen since Brown v. Board of Education and Roe v. Wade —
that’s a pretty good sign that the case is important and
difficult.

Of course, for most of our history, the question of whether
Congress could, by using its constitutional power to regulate
interstate commerce, require people to buy something would have
been laughably easy. Obviously it can’t: sitting around doing
nothing, or even deciding not to buy something, is neither commerce
— traditionally defined as trade or exchange, so not even
agriculture or manufacturing counts — nor anything
interstate.

Indeed, it wasn’t until the New Deal that the Supreme Court
allowed Congress to regulate wholly local economic activity. Using
the power to make laws that are “necessary and proper” to the
enforcement of broader regulations, the court said, the federal
government could regulate certain types of local economic activity
(wheat-farming, in one particular case) that had, in the national
aggregate, a “substantial effect” on interstate commerce.

That “substantial effects” test continues to mark the outer
bounds of Congress’ regulatory authority under modern
constitutional law. Thus, in the most recent case challenging that
power, Congress could stop two women from growing and consuming
medicinal marijuana — in compliance with applicable state
laws — because their economic activity substantially affected
the (illegal) interstate market in marijuana.

But Obamacare’s individual mandate goes further than either the
wheat or weed cases. More than regulating or prohibiting some sort
of economic activity, the federal government for the first time is
mandating that individuals engage in the very commerce that then
becomes subject to congressional regulation.

Recall that even during the Great Depression, Congress didn’t
force people to become farmers or buy wheat (or war bonds, or
anything else). And in the civil rights era, hotels and restaurants
had to start serving black people, but nobody had to become (or
remain) a hotelier or restaurateur.

The government’s lawyers contend that “health care is unique”
because virtually all of us will need it at some point, but its
significant and unforeseen cost can be passed on to taxpayers
— when the insolvent uninsured show up at the ER.

Setting aside the important distinction between health care and
health insurance, this argument simply lacks the legal force its
proponents want it to have. That is, while true as a matter of
public policy — one reason why health care has become such an
intractable political issue — the government’s point is
irrelevant to the constitutional debate.

There are plenty of commodities that we all consume: food,
shelter, clothing, mortuary services. Many others may lead to large
and unexpected costs: a car totaled in an accident, a house
destroyed by fire or flood. And the only reason why the impecunious
uninsured can slough the costs of their emergency care onto the
taxpayer is because the Emergency Medical Treatment and Active
Labor Act requires hospitals to provide care regardless of legal
status or ability to pay.

I support EMTALA — I wouldn’t want to live in a society
that lets people die in the streets — but it cannot justify
the individual mandate.

Think about it: if all Congress had to do to get more power was
to pass a law creating an economic or other policy problem, then
there would be no constitutional limit on federal authority.
Instead, Congress could rub Aladdin’s lamp to wish for more wishes
whenever a majority of its members thought it wise to do so.

And so if we can all be subject to economic mandates merely
because everyone is “already in the market,” then the
Constitution’s limits on federal power are meaningless. We’re all
in the market for transportation, so why not a mandate to buy an
American car the next time the automobile industry is in crisis?
Diet and exercise have a greater effect on taxpayer spending on
health care than rates of ownership of health-insurance policies,
so why not a broccoli or gym-membership mandate?

The government has failed to articulate a meaningful, judicially
administrable limit to its power — or even to give examples
of what lies beyond it — so it must lose.